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Executive Summary
As the new home of TexPIRG's environmental work,
Environment Texas can be contacted with any questions regarding this report.
Mandatory Minimum Penalties laws (MMPs) have increased compliance with Clean Water
Act permits in New Jersey and California.
Thirty years after the passage
of the federal Clean Water Act (CWA), industrial pollution of our nation’s waterways
remains a serious threat to public health and the environment. This problem
persists in large part because facilities continue to violate their CWA permits
— dumping much more pollution into rivers, lakes, and sewage treatment systems
than the law allows. And in many cases, these polluters are never held accountable.
For this reason, new enforcement measures must be at the core of any strategy
to preserve and protect our water resources.
Mandatory minimum penalties
(MMPs) constitute an effective policy for achieving greater compliance with
CWA permits. MMPs ensure that a specific set of permit violations are enforced
automatically, by assessing penalties on the facilities that commit those violations.
As documented in this report,
MMPs in New Jersey and California have dramatically cut illegal water pollution
in those states. New Jersey’s Mandatory Minimum Penalty program went into effect
in 1991; in the first full year the law was in effect, the number of enforcement
actions increased by 57% and the number of penalties assessed increased 45%.
Over the next eight years, as violations declined by 76%, the number of enforcement
actions dropped 77%, and the number of penalties assessed shrank 90%.
Although California’s MMP
program is relatively new, it is already showing a similar pattern of success.
The first full year of data reveals that the number of enforcement actions has
increased by 46% since the program’s inception in January 2000. The number of
enforcement actions with accompanying penalties increased by 35%, and the total
amount of penalties grew from $5.4 million to $11.9 million, a 120% increase.
Subsequently, violations of NPDES permits have decreased by 84%.
Policy Findings
New Jersey and
California’s experiences demonstrate that a well-constructed mandatory minimum
penalty provision can provide state agencies and sewage treatment plants with
an effective permit enforcement tool.
A review of New Jersey and
California’s provisions provides several important lessons for the design of
future MMP systems. A comprehensive, effective MMP should incorporate the following
principles:
1) The definition of
violations subject to MMPs should be clear and inclusive of all relevant Clean
Water Act violations. Effluent and reporting violations, big and small,
should be assessed mandatory penalties.
2) Polluters should be
fined at levels high enough to deter the wealthiest businesses while being fair
to small businesses. Further, mandatory minimum penalty levels should be
periodically readjusted to account for inflation.
3) Sewage treatment plants
should be granted the necessary authority to enforce the permit standards of
upstream polluters, including a mandate to assess MMPs for permit violations.
Many large industries discharge into sewage treatment plants. Without adequate
enforcement authority, sewage treatment plants have no means to control the
discharges entering their facilities.
4) Penalties should be
assessed promptly. States cannot use MMPs to create a successful regulatory
environment if violators do not expect swift enforcement responses.
Additional Recommendations
Furthermore, when
designing and implementing an MMP program, states should consider these additional
suggestions to ensure its success:
1) Permit holders should
be held accountable through frequent, thorough inspections and consistent state
review of self-monitoring reports. Mandatory penalties for violations only
make consistent state review of dischargers more important.
2) The policy should
establish a clear set of legal exceptions and limited affirmative defenses for
dischargers to prevent costly litigation. Clearly defined affirmative defenses
promote fairness and expedite the appeals process.
3) States should provide
the public and the EPA with the information necessary to verify enforcement
of the law. A well-constructed MMP provision creates a strict enforcement
environment. The public and EPA need the informational tools to hold dischargers
and state agencies accountable to the law.
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